TARIQ SALEEM SHEIKH, J. Through this application, Petitioner Haq Nawaz seeks post-arrest bail in case FIR No.821/2021 dated 07.09.2021 registered at Police Station Saddar Gojra, District Toba Tek Singh, for offences under sections 302, 109, 148 and 149, P.P.C.
2. Briefly, the prosecution case is that on 07.09.2021 at about 09:30 a.m., the Complainant and his son Muhammad Bilal were watering their land when, all of a sudden, the Petitioner and his co- accused attacked them and killed Muhammad Bilal. The Petitioner was ascribed the role of joint firing landing on the deceased's left thigh and flank.
3. The Petitioner has invoked the third proviso to section 497 Cr.P.C., the statutory ground for post- arrest bail.
4. Section 497(1), Cr.P.C. stipulates that when any person accused of a non-bailable offence is arrested or detained without a warrant by an officer in-charge of a police station or appears or is brought before a court, he may be released on bail. However, he shall not be released if there are reasonable grounds for believing that he has committed an offence punishable by death, life imprisonment, or imprisonment for ten years. The third and fourth provisos to section 497(1) further state: Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail.
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded.
Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate, or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
5. The Supreme Court of Pakistan has interpreted the scope of the third and fourth provisos to section 497(1) Cr.P.C. in various cases. Zahid Hussain Shah v. The State (PLD 1995 SC 49) clarified that the right to bail under the third proviso to section 497(1) Cr.P.C. is a statutory right, meaning it is not subject to the discretion of the court. The only circumstances in which the court may refuse bail under this provision are if the delay in trial is caused by the accused or by someone acting on their behalf or if the case falls within the specific exceptions mentioned in the fourth proviso of section 497(1). In all other situations where these conditions do not apply, the accused must be granted bail under the third proviso. The Supreme Court also pointed out that the nature of the injury caused by the accused, even if grievous, is irrelevant when considering bail under the third proviso.
6. In Shakeel Shah v. The State and others (2022 SCMR 1), the Supreme Court ruled that for an accused to be held responsible for delaying a trial, there must be a clear -and deliberate effort by him to obstruct the proceedings. A few adjournments requested by the defence counsel do not amount to intentional delay unless they are without sufficient cause and occur during crucial hearings, such as those for the examination or cross-examination of prosecution witnesses.
Furthermore, a pattern of repeated adjournments could suggest deliberate delay tactics. The prosecution must present evidence that the accused or their counsel is intentionally prolonging the trial through unjustified adjournments or frivolous applications. The Supreme Court emphasized that the right to bail is intrinsically linked to the constitutional rights of liberty and fair trial under Articles 9 and 10A of the Constitution. Therefore, the provisions of the third and fourth provisos must be interpreted through a constitutional lens to expand and protect the rights of an accused who is still under trial and benefits from the presumption of innocence.
7. In Nadeem Samson v. The State and others (PLD 2022 SC 112), the Supreme Court reiterated that for the delay to be considered attributable to the accused, it must be the result of a concerted effort orchestrated by him and not merely occasional adjournments by the defence counsel unless those adjournments are without sufficient cause, particularly on crucial hearings, or show a pattern aimed at delaying the trial. The Supreme Court also clarified that any delay caused by the accused after the statutory period mentioned in the third proviso is irrelevant when determining their right to bail under that provision.
8. In Muhammad Usman v. The State and another (2024 SCMR 28), the Supreme Court highlighted that the statutory right to bail under the third and fourth provisos of Section 497(1), Cr.P.C. is intended to prevent undue delays in criminal trials and to protect accused individuals from prolonged incarceration. This right to bail can only be denied for reasons explicitly mentioned in these provisos. Once the statutory period outlined in clauses (a) and (b) of the third proviso has lapsed without the trial concluding, the accused is entitled to bail as a matter of right unless the prosecution proves that the delay was caused by the accused or someone acting on their behalf.
The Supreme Court made it clear that this right is not subject to the court's discretion but arises automatically when the conditions in the third proviso are met. In determining whether the delay is attributable to the accused, the court must consider the overall impact on the trial rather than relying on a mathematical calculation of adjournments. The main factor for consideration is the attendance of the witnesses and whether, despite the matter having become ripe for the recording of evidence, the defence caused the delay.
9. The Supreme Court reaffirmed the above principles in Rohan Ahmad v. The State and others (PLD 2024 SC 492). It emphasized that the right to bail is not merely a statutory entitlement but is firmly rooted in the constitutional guarantees provided under Articles 4, 9, and 10A of the Constitution, which protect the right to be treated in accordance with the law, the right to liberty, and the right to a fair trial. Given the presumption of innocence, the accused cannot be subjected to prolonged pre-trial detention unless the prosecution can conclusively demonstrate that the accused's actions caused the delay in the trial or that the case falls within specific exceptions.
10. Having considered the applicable law and judicial precedents, let's now turn to the case before us. FIR No. 821/2021 was lodged on 07.09.2021. The police initially submitted an incomplete challan under section 173 Cr.P.C. on 16.04.2022 regarding the Petitioner, Haq Nawaz, and co-accused Ali Asghar, Saad Ullah, Nisar Ahmad, Muhammad Imran, and Ali Raza. A supplementary challan was filed on 27.05.2022, placing the remaining accused in Column No. 2. The Additional Sessions Judge summoned these accused persons by order dated 10.06.2022. They initially avoided the court but eventually appeared on 19.07.2022, only to continue playing a game of hide-and-seek by repeatedly absenting themselves. Finally, on 23.09.2022, all the accused appeared. The court provided them with the required documents under section 265-C Cr.P.C., and scheduled the case for the framing of charges. Thereafter, the accused who were out on bail again began to absent themselves. After completing the necessary legal formalities, the Additional Sessions Judge declared Muhammad Tanveer a proclaimed offender by order dated 26 .01.2023.
11. Complainant Muhammad Aslam was dissatisfied with the police investigation. On 28.07.2022, he filed a private complaint under sections 302, 109, 148 and 149, P.P.C. The Additional Sessions Judge recorded cursory evidence and summoned all the accused to stand trial. The Petitioner, along with Ali Asghar, Saad Ullah, Muhammad Imran, and Ali Raza, appeared in police custody, while the remaining accused - Sarfraz, Ghulam Dastagir, Nadeem, Nisar, Muhammad Bilal, and Inayat Ullah - who were on bail in the connected State case, also appeared. However, Muhammad Tanveer failed to appear. The Additional Sessions Judge declared him a proclaimed offender and separated his case vide order dated 11.02.2023. While the accused were formally charged in the private complaint on 11.03.2023, only the examination-in-chief of two witnesses, Muhammad Idrees and Muhammad Ashraf, has been recorded so far.
12. The Petitioner was arrested on 19.01.2022. The trial has not concluded although more than two years and seven months have elapsed. Certified copies of the interim orders produced by the learned counsel for the Petitioner show that the Petitioner sought only a couple of adjournments during the aforementioned period. The delay in concluding the trial is largely attributable to the accused who are on bail. The learned Deputy Prosecutor General has confirmed that the Petitioner is neither a previous convict nor a hardened, desperate, or dangerous criminal. He is also not an accused in any case of terrorism punishable with death or imprisonment for life. Thus, his case does not fall within the exceptions mentioned in the fourth proviso to section 497(1) Cr.P.C.
13. In view of the foregoing, this application is accepted. The Petitioner is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs. 1,000,000/- (Rupees one million) with two sureties in the like amount to the satisfaction of the learned trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.